Somin on Trump's New, Also Illegal Tariffs

Writing in the Boston Globe, Ilya Somin, who helped bring down Trump's IEEPA tariffs, explains why Trump's latest power grab would "undermine the constitutional system almost as much as the earlier tariffs did."

It's a relatively short piece, but I'll pass along two highlights.

First, the new Section 122 tariffs are illegal and Trump knows they are:

Shortly after the court's decision, Trump issued a proclamation invoking Section 122 of the Trade Act of 1974 to impose 10 percent global tariffs. The next day, he increased the rate to 15 percent -- though as of Tuesday, the administration implemented only 10 percent tariffs. Section 122 only permits tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or are to cooperate with other countries in addressing an "international balance-of-payments disequilibrium."

As conservative legal commentator Andrew McCarthy explained in National Review, none of these legal preconditions to the use of Section 122 exist. Nor is the scheme part of some plan of international cooperation.

...

Trump's proclamation imposing the Section 122 tariffs cites trade deficits as a justification. But as the Trump administration itself argued in the IEEPA case, Section 122 does not apply to trade deficits. In fact, that is one reason why the administration wanted to use IEEPA to impose the tariffs. [links omitted, bold added]

Second -- and my best guess as to why the new tariffs are "almost" as bad as the old -- is that there is a numeric limit of 15% in Section 122.

That said, while 15% is lower than some of Trump's IEEPA tariffs, it isn't really much of a limit, given how loosely Trump is interpreting the law -- on top of blatantly ignoring the fact that the required conditions for using it haven't even been met:

Justice Neil Gorsuch's concurring opinion in the IEEPA case also relied on the nondelegation doctrine, which limits the extent to which Congress can delegate its authority to executive discretion. The limits of delegation are far from clear. But the Supreme Court held last year that a delegation of authority to impose taxes or fees must have a "floor" and a "ceiling" and that the degree of "guidance" required from Congress is greater "when an agency action will 'affect the entire national economy' than when it addresses a narrow, technical issue." The power to impose 15 percent tariffs -- the highest tariffs since the disastrous Smoot-Hawley tariffs that exacerbated the Great Depression -- is unquestionably one that affects the "entire national economy." And Trump's permissive interpretation of the law would let him impose those rates at almost any time. [link omitted, bold added]

As Somin indicates, the new tariffs will likely be challenged soon. It will be interesting to see if and when the courts enjoin them, given the fact that companies already feel the need to sue to recover the money this Administration looted from them last time.

-- CAV

P.S. I hear Trump bloviated/demonized immigrants/tossed red meat to his base last night. The lengthy transcript is here for anyone who is interested. I read a few sections, and it looks to be about what one would expect.

To wit, Trump asked for another participation ribbon after casting himself as the one thing standing between us and doom: I've always wanted the Congressional Medal of Honor, but I was informed I'm not allowed to give it to myself...

This loser -- whom congressional Republicans refuse to corral -- just cannot allow anyone else, even an actual winner, enjoy the limelight for even a few seconds.

Trump's IEEPA Loot Return Scandal

"Let's all please stop calling the $175B+ 'proceeds,' 'revenue,' or the like. It is ill-gotten. Call it what it is: LOOT." -- Me

***

I no longer recall where I heard this, but a factor in the courts not stopping the Trump Administration from collecting IEEPA tariffs while the legal system chugged along was, I believe, a promise on its part to refund the loot should the taxes be ruled unconstitutional.

There are rumblings about this being "difficult" and taking a long time.

This is as ridiculous as calling the loot by any other name, as Joseph Calhoun of Alhambra argues bluntly:

As an aside, let me say that a lot of the commentary I saw on the refund issue Friday was the most idiotic I've seen in a long time. I saw multiple comments to the effect that it would be hard to refund the tariffs since we don't know who actually paid them. Anyone making that argument should automatically forfeit their right to debate anything about trade policy ever again, in perpetuity. Let me be very, very clear about this. The refunds will go to the people or entities who actually wrote the check for the tariffs (or authorized the EFT or sent a wire, whatever). The refund has nothing to do with the incidence of the tax, who bears its ultimate burden. A foreign company that reduces its border price so the cost to its US customers remains the same post tariff is, in a sense, "paying" for the tariff. But the entity that is owed a refund is still the US company that imported the item, sent payment to US Customs and Border Protection for the tariff and collected the goods from customs. There is no other right legal answer. [bold added]

Thank you, Mr. Calhoun.

I'll close by naming the all too predictable scandal to come, with the example I gave after the above quote of the use of the word loot in a sentence:

After SCOTUS found the IEEPA tariffs unconstitutional, Trump dragged his feet on repaying the LOOT back to his victims.

On top of this scandal, those who lost businesses and livelihoods to Trump's mad whims cannot took forward even to that remote possibility, although there will be some Trump will attempt to pay off with loot aquired from others through past taxes and future inflation.

-- CAV

SCOTUS Correctly Dumps IEEPA Tariffs

Friday, the Supreme Court issued its long-awaited ruling on the dubious legality of Trump's "emergency" tariffs, which the President claimed the International Emergency Economic Powers Act (IEEPA) empowered him to levy:

A 6-3 Supreme Court majority on Friday struck down President Trump's sweeping emergency tariffs (Learning Resources v. Trump) in a monumental vindication of the Constitution's separation of powers. You might call it the real tariff Liberation Day.

It's hard to overstate the importance of the Court's decision for the law and the economy. Had Mr. Trump prevailed, future Presidents could have used emergency powers to bypass Congress and impose border taxes with little constraint.

As Chief Justice John Roberts explains in the majority opinion, "Recognizing the taxing power's unique importance, and having just fought a revolution motivated in large part by 'taxation without representation,' the Framers gave Congress 'alone ... access to the pockets of the people.'" [link removed]

I agree with Yaron Brook that the ruling, while imperfect, is very good news in that it upholds rule of law in the short term, and with David French that it cannot, alone, save our Republic:

During Trump's second term, I've likened the judiciary to the rear guard of a retreating army. A valiant delaying action can give the army a chance to reinforce, reorganize and strike back. But if the army can't strike back, then rear guards merely delay defeat.

The judiciary isn't perfect, but it is performing its core constitutional function. It is preserving the foundation of America's constitutional structure. But not even the Supreme Court can save Americans from themselves.

If we keep electing men like Trump, they will keep undermining that foundation, until it finally collapses.

One day that may well happen. But on Friday, the Supreme Court said not this day. On this day the presidency is stuffed back into its box. On this day the separation of powers prevails. And on this day the Constitution holds.

It is now our job to make sure that the Supreme Court did not stand in vain.

Those interested in legal analysis would do well to read Ilya Somin's piece about the ruling in The Atlantic, where one of the counsels in one of the three cases briefly explains the reasoning presented by the concurring and dissenting justices.

Yaron Brook discusses the ruling.

This Brook does as well in his commentary, embedded above, spending time delving into Gorsuch's opinion, which was the most devastating to the tariffs, as well as being about as good as one could expect in today's intellectual context.

-- CAV

Blog Roundup

A Friday Hodgepodge

1. "False: All Claims, Positive or Negative, Require Evidence," by Harry Binswanger (Value for Value):

To know, even to know that something might be the case, is to have formed a valid mental product; it takes the means of doing so. Evidence is that means. No evidence, no means of cognition. No means of cognition, no cognition.

The positive/negative distinction does apply to acts of consciousness: not accepting an idea (a negative) isn't an act at all. It's the commitment of your consciousness that needs justification. The not making of that commitment isn't a disguised commitment.

Atheism is not the belief in non-God. It's not a belief in anything; it's the rejection of belief.

The usual way of defending atheism is wrong. The defense is not: "I don't need a reason to accept atheism, but they need a reason to accept theism." The deepest explanation is: atheism isn't a belief; it isn't something you accept. Atheism is the refusal to accept nonsense stories.

480 words/2 minutes

2. "In Defense of 'Evil Billionaire' Jim Pattison," by Jaana Woiceshyn (How to Be Profitable and Moral):

The worst part of [Green Party leader Emily] Lowan's immoral argument is that it completely ignores the value Pattison's grocery businesses create, not only to him but to his customers (who can shop for plentiful food at local stores), to 59,000 employees (with well-paying jobs across all his companies), and to other businesses who can thrive in areas with value-creating grocery stores.

The anti-capitalist activists use the same arguments not only against grocery stores but against all successful businesses while ignoring the huge role business plays in making our lives better by producing and trading products and services that we need. Penalizing and destroying businesses would make our lives miserable and much poorer.

900 words/3 minutes

3. "The Lawyers Defending Trump's Tariffs Know They're Un-American. Here's How We Can Tell" (November 2025), by Ben Bayer (New Ideal):

Originalism is appealing to those who revere America's Founding Fathers and documents. But too many slip back and forth between thinking that the founders are to be revered because they did something great, and because they represent preserved, long-held tradition. Trump's "originalist" apologists exploit this ambiguity and cash in on the tradition worship, with the effect of negating what actually made the founders great: they overthrew the authority of the king on the basis of revolutionary philosophy that would liberate mankind from shackles. In their desperation to justify Trump's tariff powers, Trump's apologists reveal a willingness to trample on that revolution and reinstitute a monarchy. [footnotes omitted]

3000 words/10 minutes

4. "One Quick Question," by Harry Binswanger (Harry Binswanger Substack):

Crime is a problem. Crime by foreigners in the U.S. is a part of that problem. Crime by foreigners illegally in the U.S. is a part of that part.

Criminals, whether illegals or citizens, have guns and confederates. ICE agents have assault weapons, SWAT gear, and an organization of tens of thousands.

Criminals are condemned by everyone. They are outlaws, operating in the shadows. ICE agents have a moral sanction. ICE was set up by the U.S. Congress. It is funded by Congress. Half the country think ICE agents are doing God's work. Or they did until the recent killings.

310 words/1 minute

-- CAV

Savvy Answers to Stupid Questions

Writing at Comstock's, Suzanne Lucas tackles clueless/illegal job interview questions, prompted by the situation she uses in her title "I Was Asked My Zodiac Sign During a Job Interview. Should I Be Worried?"

Although she focuses on job interviews, and the other questions would be ordinary in other circumstances, I like Lucas's recommendation for how to answer the title question regardless of that context.

If someone actually takes astrology seriously, that is indeed something I'd want to know about that person, as it likely reflects poor judgment, at least about some things.

Here's the full question and Lucas's answer:

I had a second-round interview at a top-tier company, and the final question completely threw me off: "What's your astrological sign?" It felt unprofessional and, honestly, a bit disrespectful for a serious interview. Curious [about] your thoughts -- red flag or harmless curveball?

Answer: Yes.

The average manager only interviews people about once a year, so they might not know what they're doing when it comes to this (perhaps dreaded) duty. This doesn't mean they're a bad boss or that the company isn't a good one.

In your case, it could mean that this person will be a nightmare boss who checks their horoscope each morning and assigns work based on the predictions. Or it could mean they're nervous and making small talk. It's hard to tell off this one question.

...

There are a couple of great ways to answer this. One is to play it straight and tell your sign. If you say "Aquarius," and the interviewer says, "I KNEW it!! You part your hair on the left!" then you've just learned something very valuable: This manager will rely on silly things to make decisions.

If they reply with something nonchalant, like "Cool," or "Oh, I'm a Libra," then follow up: "Why do you ask?"

...

That said, do you want to work for a company that hires based on the zodiac?

(Conversely, you don't want to write off a job just because someone asked a silly question.)

Lucas's answer shows a way to find out if such questions are serious, or perhaps just tone-deaf attempts at small talk. Lucas's last sentence above shows why it is important to take advantage of such a question in a high-stakes situation.

Whether someone else has nutty beliefs isn't always important, but it's easy to come up with other times one might appreciate knowing about them before they become relevant or have the chance to do so.

-- CAV

P.S. My post title was inspired by my childhood hobby of reading my Dad's old collection of Mad magazines, which carried a feature called, Snappy Answers to Stupid Questions.

Lucas's piece will prompt us to resist the temptation of a smart alec answer and go for knowledge instead.

Trump Begs Questions on Elections

The fact that President Trump wants to "nationalize" elections immediately raises the question of Why? His pouting for years about his 2020 loss leaves no doubt that he wants to change something about how we conduct our elections. In his mind, he should have won, and by his words, we are to believe he wants to make these "rigged" elections more "fair."

For anyone who has better things to do than listen to whining, but is concerned about what such an openly corrupt politician might want to do, George Will has a nice primer on what is going on.

Spoiler alert: Trump is indeed up to no good. After recounting Trump's indulgence in conspiracism on the matter, Will engages with some facts:

Someone should read to him "Lost, Not Stolen," [pdf] a 2022 report by eight conservatives (two former Republican senators, three former federal appellate judges, a former Republican solicitor general, and two Republican election law specialists). They examined all 187 counts in the 64 court challenges filed in multiple states by Trump and his supporters.

Twenty cases were dismissed before hearings on their merits, 14 were voluntarily dismissed by Trump and his supporters before hearings. Of the 30 that reached hearings on the merits, Trump's side prevailed in only one, Pennsylvania, involving far too few votes to change the state's result. Trump's batting average? .016. In Arizona, the most exhaustively scrutinized state, a private firm selected by Trump's advocates confirmed Trump's loss, finding 99 additional Biden votes and 261 fewer Trump votes. [link and italics in original. Bold added.

Trump, who started his term with the sound and fury of an entire agency allegedly devoted to combating fraud and waste in government, surely has better things to spend his political capital and your tax capital on than "fixing" a clearly functional system -- if, that is, by fixing, one means "causing to work as intended."

"I just want to find 11,780 votes." -- Presdent Donald Trump

As for myself, I'll view this in light of his famously pressuring an official in Georgia to "find 11,780 votes."

-- CAV

Can the Pardon Power Be Fixed Quickly?

According to reports, Representative Don Bacon (R-NE) has agreed to cosponsor a constitutional amendment that would give Congress oversight over presidential pardons -- apart from the existing remedy of impeaching the President, of course:

The bill was introduced by Rep. Johnny Olszewski (D-MD) last December and would allow for a minimum of 20 House members and five senators to call for congressional review of a pardon, which would lead to a 60-day deadline for Congress to nullify that pardon with a two-thirds majority vote -- similar to a veto override.

While I think the proper solution to Trump's blatant abuse of this power would be his impeachment and removal from office, this measure strikes me as a reasonable middle ground between eliminating that power altogether and having to clear the normally very high bar of impeachment to address less flagrant or obvious cases of abuse or error.

It is interesting to consider the amendment process for the Constitution, as well as history to evaluate the viability of this solution:

Under Article V, a proposal for an amendment must be adopted either by two-thirds of both houses of Congress or by a national convention that had been requested by two-thirds of the state legislatures. Following this, Congress decides whether the proposed amendment is to be ratified by state legislatures or state ratifying conventions. The proposed amendment along with the method of ratification is sent to the Office of the Federal Register, which copies it in slip law format and submits it to the states. To date, the convention method of proposal has never been tried and the convention method of ratification has only been used once, for the Twenty-first Amendment.

A proposed amendment becomes an operative part of the Constitution as soon as it is ratified by three-fourths of the States (currently 38 of the 50 states). No additional action by Congress or anyone else after ratification is required... [links and footnotes omitted, bold added]

While, historically, most amendments have taken years to be ratified, there is precedent for a rapid-enough process to do some good during Trump's term:

The Twenty-sixth Amendment (Amendment XXVI) to the United States Constitution establishes a nationally standardized minimum age of 18 for participation in state and federal elections. It was proposed by Congress on March 23, 1971, and three-fourths of the states ratified it by July 1, 1971.

That's three months from start to finish.

That noted, it is relevant that those in favor of the lower voting age had worked over most of a decade to curry widespread support for such a measure. As ill-informed and indifferent as most American voters are, and as normalized as corruption has become in American politics, it is hard for me to imagine enough outrage over Trump's pardons to cause this proposed amendment to be ratified during Trump's term.

That said, my off-the-cuff opinion is Go for it, anyway and better late than never.

-- CAV